Judge: Linda S. Marks, Case: 2021-01184977, Date: 2022-10-03 Tentative Ruling
Motion to Compel Production filed by Rene Silva on 5/31/22
Whether the Privacy Rights of these Non-Party Employees is Outweighed by the Need for Relevant Discovery
The discovery at issue seeks the following records pertaining to HESTON employees Juan Cazaraez, Jorge Gonzalez, Miguel Gonzalez, Pablo Gonzalez, Kirk Harwood, Jose Luquin, Benigno Morales, and Candelario Valles (“Non-Party Employees): (1) performance evaluations, appraisals or reviews; (2) disciplinary actions issued; and (3) resumes/curriculum vitaes. The pertinent time frame is from the start of their employment through the reduction-in-force in November of 2019.
Defendant objected on the grounds the Requests seek information that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence; is overly broad and unduly burdensome in scope; and seeks confidential information protected by privacy rights of its non-party employees.
The crux of this Motion is whether or not the privacy rights of the Non-Party Employees in their employment records is outweighed by Plaintiff’s need for relevant discovery.
Right to Privacy.
Article I, section 1, of the California Constitution secures to all people the right of privacy. The ‘inalienable right’ of privacy is a 'fundamental interest' of our society, essential to those rights ‘guaranteed by the First, Third, Fourth, Fifth and Ninth Amendments to the U.S. Constitution.'…However, ‘the constitutional right of privacy is not absolute; it may be abridged to accommodate a compelling public interest. [Citations.] One such interest, evidenced by California's broad discovery statutes, is ‘the historically important state interest of facilitating the ascertainment of truth in connection with legal proceedings.’ [Citation.] When an individual's right of privacy in his ... affairs conflicts with the public need for discovery in litigation, the competing interests must be carefully balanced.” (El Dorado Sav. & Loan Assn. v. Superior Court (1987) 190 Cal.App.3d 342, 345.)
“When compelled disclosure intrudes on constitutionally protected areas, it cannot be justified solely on the ground that it may lead to relevant information.” [internal citations omitted.] And even when discovery of private information is found directly relevant to the issues of ongoing litigation, it will not be automatically allowed; there must then be a ‘careful balancing’ of the ‘compelling public need’ for discovery against the ‘fundamental right of privacy.’” (Bd. of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, 525-26.)
“Even where the balance, because of a ‘compelling state purpose,’ weighs in favor of disclosure of private information, the scope of such disclosure will be narrowly circumscribed; such an invasion of the right of privacy ‘must be drawn with narrow specificity…’ Where it is possible to do so, ‘... the courts should impose partial limitations rather than outright denial of discovery.’” (Id.)
With respect to the privacy objection, the party seeking discovery after a privacy objection has been made must show a particularized need for the confidential information sought. The court must be convinced that the information is directly relevant to a cause of action or defense ... i.e., that it is essential to determining the truth of the matters in dispute. (Britt v. Sup.Ct. (San Diego Unified Port Dist.) (1978) 20 Cal.3d 844, 859–862; Harris v. Sup.Ct. (Smets) (1992) 3 Cal.App.4th 661, 665.)
The court must carefully balance the requesting party’s need for the information with opposing party’s right of privacy when determining whether the discovery should be permitted. (John B. v. Superior Court (2006) 38 Cal.4th 1177, 1199; Harris v. Superior Court (1992) 3 Cal.App.4th 661, 665.) Discovery should not be ordered if the information sought is available through less intrusive means. (Allen v. Superior Court (1984) 151 Cal.App.3d 447, 449.
Plaintiff contends good cause exists for the production of these records because Defendant HESTON is defending this action on the grounds it had a legitimate business reason for Plaintiff’s termination -- that Plaintiff was terminated as part of a reduction-in-force (“RIF”) in November of 2019 (see Response to Form Interrogatory No. 201.4); that Plaintiff was selected to be included in the RIF because he purportedly scored lower across several metrics when compared to his fellow welders and counterparts including with respect to his disciplinary record and performance history; and that as a result, Defendant has placed into issue the evaluations, appraisals, disciplinary actins, and resumes of his fellow welders and counterparts. Plaintiff contends the requested information is necessary to rebut Defendant’s purported business justification and to show pretext by showing Plaintiff had superior qualifications than his comparators.
In Opposition, Defendant contends the Requests are phrased in such a way to encompass Defendant’s “comprehensive performance evaluation, which includes 15 different and broad categories, documents reflecting an employee’s private medical information, employee compensation, and sensitive communications. (See Exh. J, Hestan’s Evaulation, HCC-1389.) Defendant also contends a heightened level of protection exists under the Confidentiality of Medical Information Act which protects medical information and requests consent or a Court Order for such information to be disclosed pursuant to Civil Code sections 56.10 and 56.13. Defendant contends that Plaintiff can obtain the information it desires via as-yet untaken depositions of HESTON’s Persons Most Knowledgeable as well as HESTON’s other shift leads, managers, and others who could testify to Plaintiff’s performance compared to those of his fellow co-workers. Lastly, Defendant contends it has already produced the complete set of records Defendant relied upon for its RIF including emails and correspondence discussing the RIF, the documents reviewed in the correspondence, the board minutes leading up to the RIF decision, and the overarching spreadsheet that showed employee scores with the names of the other welders.
The parties do not dispute that there is a right to privacy in one’s employment records and personnel file. (See, e.g., Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516; El Dorado Savings & Loan Assn. v. Superior Court (1987) 190 Cal.App.3d 342, 304 [“plaintiffs acknowledge the personnel records of petitioner [non-party employee] Morris are protected by the right of privacy”], both cases were disapproved of by Williams v. Superior Ct. (2017) 3 Cal.5th 531, 557 on other grounds as follows: “To the extent prior cases require a party seeking discovery of private information to always establish a compelling interest or compelling need, without regard to the other considerations articulated in Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th 1, 26 Cal.Rptr.2d 834, 865 P.2d 633, they are disapproved.”.)
Although Defendant contends to the contrary, the Requests as worded do not appear to seek the private medical records of the Non-Party Employees. The Requests seek specifically performance evaluations, appraisals or reviews; documents reflecting disciplinary actions issued; and resumes/curriculum vitaes. Defendant, however, produces evidence that its “comprehensive performance evaluations” contain “documents reflecting an employee’s private medical information, [and] employee compensation.” To the extent the Requests can be interpreted to include medical information or compensation of the Non-Party Employees, the Court DENIES the Motion and orders that such documents are not to be produced as they are subject to a right to privacy and Defendant failed to show good cause or a compelling need for same.
However, the Court finds that Plaintiff met his burden of establishing that good cause and a compelling need for the Requests exists in this case. The Requests seek information to rebut Defendant’s stated reason for termination was the RIF and Plaintiff’s lower score compared to the fellow welders and counterparts. (See Kelly v. Stamps.com Inc. (2006) 135 Cal.App.4th 1088, 1098 [““Downsizing alone is not necessarily a sufficient explanation, under the FEHA, for the consequent dismissal of [a protected] worker. An employer's freedom to consolidate or reduce its work force, and to eliminate positions in the process, does not mean it may ‘use the occasion as a convenient opportunity to get rid of [protected] workers.’ [Citations.] Invocation of a right to downsize does not resolve whether the employer had a discriminatory motive for cutting back its work force or engaged in intentional discrimination when deciding which individual workers to retain and release.” (Italics added.)”].)
“Where the discharge results from a reduction in work force, the plaintiff may show ‘through circumstantial, statistical or direct evidence that the discharge occurred under circumstances giving rise to an inference of age discrimination.” (Wallis v. J.R. Simplot Co. (9th Cir. 1994) 26 F.3d 885, 891.)
“Qualifications evidence may suffice, at least in some circumstances, to show pretext.” (Ash v. Tyson Foods, Inc. (2006) 546 U.S. 454, 456–57.)
Finally, as to Defendant’s contention that Plaintiff can obtain this information via deposition of its PMK and other shift leads, managers, and others who could testify to Plaintiff’s performance compared to those of his fellow co-workers, Plaintiff would have no way to verify the accuracy of the testimony offered or to confirm that Plaintiff’s resume or qualifications and work performance evaluations were below those of his counterparts.
Tentative Ruling: The Motion to Compel Production is GRANTED and the records are to be produced subject to the June 2, 2021 Stipulated Protective Order in this case.
Sanctions: Sanctions requested by Plaintiff are DENIED as it cannot be said that Defendant acted without substantial justification.